*1 669 89 N. 2d 763. modifica- Young, 166 Neb. W. tion of the child support judgment proper however, find, the discretion of the court. We should be awarded sum $750 services of her in this and the trial for the attorney court.
Affirmed as modified. appellant McClellen, and cross-appellee, William appellees al., et Dobberstein, Jr., Albert cross-appellants. N. W. February 23,
Filed 1973. No. 38435. *2 Tye, Tye, appellant. Worlock, Jacobsen & for Orr, Knapp, Yeagley, appellees. Tarrell, State & for before White,, Heard C. J., Spencer, Boslaugh, Smith, JJ. and McCown, Newton, Clinton, J.C. White, appeal plaintiff by The here is the from $25,000 personal injury judgment resulting from a rear-end motor ney, just vehicle collision on M Avenue outside Kear- gist plaintiff’s appeal
Nebraska. of The the is the contention that there was error in several instructions and that he was entitled a directed verdict on the liability. issue of cross-appealed The defendants have contending plaintiff contributory that the a matter of law and that the action should . judgment be dismissed. We affirm the of the district cross-appeal. court and dismiss the Only necessary disposition ap- facts the for of this peal opinion. set out in this will be The defendant employee gar- Moreno, Dobberstein, abandoned a bage truck owned Dobberstein the side of roadway gas, M because it the Avenue was out of warning placed it, no devices around and no notified presence. one remained there until of its sometime evening. during 10 Between of 12 the minutes o’clock midnight Kearney police 1 and a.m. two officers in a investigate stopped unlighted the truck. cruiser facing parked north on east side truck was parked roadway. cruiser on west side lengths approximately car two north street- truck. The northbound southbound cruiser front-of lights ample on beam there low room were pass for vehicular traffic to the truck and between from cruiser either direction. The officers finished checking plaintiff’s the truck at that time saw coming bridge over the feet 1,800 end of a about south city or 6 blocks south of the location of the truck. One recognizing danger, of the officers testified that, flashlight, equipped took a red tone a two-cell with swinging flashlight and ran the road, down horizon- tally light so both red showed, and white for purpose plaintiff. point stopping He reached a plain- about a block south speed lane of He tiff’s plaintiff’s estimated travel. per hour;
car at to miles there speed no car from the decrease time bridge; that the it crossed the car never varied in seeing impact. path admitted its until lights on the road to the north he came over they bright bridge. He did not know whether were they him. He beam testified blinded never but any or heard the officer or verbal saw *3 speed, warning. He never reduced his never saw looked to the of the truck, and side road lights. looking bright He realized the to avoid stationary bright he car with from it. 4 blocks about negligence of and court the issues trial submitted
The
jury.
jury
contributory
The
to
resolved
difficulty
plaintiff. The
favor of the
in
issues
these
plaintiff’s position
from this fact. The
arises
argues
assigns
error in
plaintiff
error and
instruc-
relating
all
to the issues of
6,
16,
2, 3,
Nos.
tions
assignments
error
of
liability. Neither
argue
argument
or
in his brief does he assert
in his
nor
inadequacy
jury
insufficiency
verdict
or
argue that
is
nor
verdict
damages, nor assert
plaintiff
by
recovered
the evidence.
á
supported
$25,000.
of
the sum
matter
in
verdict
substantial
inadequacy
insufficiency
of the verdict is not'
judicial
before us for
review and
cannot
considered.
elementary
It is
appeal
that consideration of a cause on
assigned
is limited to errors
and discussed. Revised
Supreme
2(3);
Rules of the
§
1971, Rule 8a
Court,
25-1919,
1943;
R. R. S.
United States
Bank
Fee
Nat.
v.
ap
nan,
673 alleges assigns Plaintiff error in the admission of being map exhibit diagram 57, of the accident area. Again already it is clear, under the set authorities out opinion, in this present, that such if error, could not possibly prejudicial plaintiff, to the inasmuch jury question liability plaintiff’s resolved the in the favor. plaintiff assigns as error the failure trial give requested
court to instruction 11, No. which, jury effect, in proper directed the that it was for it to take purchasing into power consideration the low assignment dollar. There are two answers this place, pointed In first error. as we have out, assigned error is with reference to the amount argument verdict, nor is asserted in that jury any way verdict of the inadequate. in the sum of is in $25,000' It is true that the can consider such arriving in factor at the amount of verdict but specifically proper this court has subject held that it is Segebart Gregory, for instruction. 64, Neb. N. W. 315. There is no merit to this contention. question presented by
A much more serious is cross-appeal. defendants’ The defendants in contend, substance, does come range exceptions vision and was rule, contributory negligence barring law, aas matter of failing recovery, to see collision and avoid with the They rely garbage upon truck. the basic state- George, Buresh ment of rule in 149 Neb. 340, we said the driver of an N. W. 2d obligated legally keep such lookout automobile plainly visible before him and that he can what duty. conjunction himself of In relieve he cannot so drive his therewith, he must automobile stop object avoid he can time to it. The he sees application argue court, defendants disregard testimony must to rule, *5 674 momentarily by
the fact that his vision blinded true that court cruiser. It is many presence has said of smoke, times the existence and fog, blinding headlights, other snow, mist, or similar destroy visibility materially impair elements or intervening not to are be but rather as causes, deemed upon impose conditions which the drivers of automobiles duty safety public by to assure the the exer- surrounding cise con- with such care commensurate 1 N. 2d Havlat, 723, ditions. Nichols v. 140 Neb. W. County of See, Buffalo, v. 161 Neb. also, 829. Shields 34, 71 N. 2dW. 701. opinion bring are that in
We the facts this case exceptions to the rule and that the trial it within the properly court determined issues were submissible exception jury. applies We stated an depression object, to obstruction, situations where roadway, reason, is of the same color and for as cannot reasons, or for be observed other sufficient ordinary time avoid the exercise of care in to a col- Forburger, 824, 161 74 N. W. Guerin v. Neb. lision. Guynan Neb. 133 N. 2d 870; Olson, 335, 178 W. 2d 300; N. Tilford, 139, 125 Neb. 249 571; Adamek v. W. Haight Nelson, 59 N. 341, 157 Neb. W. 576. We consistently object on the held have highway where night driving thereon so front of one is
in may nearly be difficult the road the color distinguish quite it cannot be close, said, until to person of contrib- law, that such matter negligence. utory Welsh, 122 164, Giles v. Neb. v. Cosden Oil Co., Monasmith Neb. 813; W. N. W. 623. 246 N. argument of the defendants as to the factual very persuasive is merits. presented question us, only is under
But well-recognized verdict, to a directed rules as whether under conflicts or inferences the evi- are sufficient there find to warrant for the case dence comparative negligence under the rule. As (see Guynan supra) we have stated v. Olson, the cases in which a court is warranted submit a rear-end col- jury generally lision situation to the embraces facts involving might and situations reasonably factors which duty considered to relieve a driver of the to see the object or precisely, vehicle in time to it. avoid More question usually presented driver, whether escape stopping range order to the rule of object, of vision of a discernible is excused for not see- ing object vehicle or the road ahead of him *6 actually sooner than he did escape and to was unable undisputed the collision. The evidence is that the un- lighted parked plaintiff’s truck, in the middle of the roadway, gravel, tar, was covered with dirt, and and green that the box of the truck roadway in was dark color. The unlighted. undisputed It is also that the roadway defendant Moreno abandoned the truck the in place any flags, and he did flares, flashers, or other warning oncoming devices on the road to warn travelers presence of of his truck. the abandoned These facts bring clearly excep- seem to the would case the par- tions announced rules we have recited and ticularly present the factual situations Monasmith to supra. supra, Co., Cosden Oil Giles Welsh, and In escape application essence, the defendants to the seek exceptions by arguing quite of the to the rule force- lights police fully the the of cruiser and the activ- attempting stop ity of the officers in the application bring the case back within the of the rule. questions of the location feel that the relative We degree brightness police of cruiser, dimness question lights, the conduct when its quite facing credibility unusual situation, and testimony to the effect that he did see of his warning properly or hear the verbal officer’s questions jury plaintiff present for under all circum- is true that did not decrease his stances. parked speed, im- did not he see until headlights mediately upon did see the it, prior police feet 1,700 at least to the cruiser, officer’s point time of the collision. out this is not We being question blinding simply excuse being your a vehicle for not able ahead lane highway. many of traffic on the We held have times do that it is not. But we hold is the com- what judgment presenting prob- circumstances bination of police plaintiff’ stationary lem to the of where cruiser truck jury its relation car was, alone presented question, his itself would credibility testimony speed, of his as to and warnings presents to heed officer failure jury of circumstances from which a a combination judgment to form con- entitled whether negligent. properly tributorily trial court submit- contributory jury. ted issue assignments to the conclusion that come We merit the verdict are without error judgment of the trial court should be affirmed. court judgment the trial therefore affirmed cross-appeal of the defendant dismissed. and the cross-appeal Affirmed dismissed. J., dissenting. Newton, injured an automobile accident oc- Plaintiff was *7 graveled Kearney, curring road on outskirts of on a operating Moreno The defendant was a truck Nebraska. early evening gas out and ran which highway, on the permitted to stand without flares, was until the occurred several hours accident later. That apparent. negligent only ques- The were defendants or not the was con- tion is whether barring negligence, tributory to recover as a that he consequently find I was law. matter opinion. majority disagree with undisputed evidence reflects two of- parked truck in the observed northbound ficers parked lights patrol traffic lane and on their car with lengths low beam or two three car north of the lights patrol but in the southbound lane. car approached illuminated the Plaintiff from truck. approach by south. His the officers. observed was One of the in full officers, uniform, ran down road plaintiff waving flashlight. he toward distance problematical covered is somewhat but it is clear lights lighted only by area not patrol by car but also those auto- traveling speed variously mobile. Plaintiff per estimated at from to He struck miles hour. lengths. the rear of the truck drove it two car ahead He states he failed to see the officer with passed yell and failed to hear the officer as he was although plaintiff’s open. partially Plain- window was tiff did slow down. Plaintiff further states away patrol still 2 or 3 blocks that the ascertained headlights moving. with its A ordinarily approach car, dark, after dictates a cautious may highway blockage, as it indicate accident, people highway. on the Plaintiff denies that he was lights patrol “Q blinded car and states: you you, So could front of what was cor- rect? They bright lights, yes.
A they impairing your they Q vision, And were were not? yes. A I front, If had looked you they bright, Q Didn’t look at them to see that were McClellen? Mr. then Yes,
A I looked the side rather than stare them down. trying you
Q tell You are drove gravel ridge, looking you? aat are six blocks down me, A looked to the front bank road, I showing my and the dim were road where yes. bank me, ahead *8 your car lights
Q the direction Your in the road shone they? didn’t was headed, * * * Yes, A to the front and side. glare you and it you
Q see the ahead And could your it not? vision of the did road, obscured — I if had It of the road A obscured vision light, front not to the into but looked the beam of me and to the no. side, coming right road,
Q wasn’t The beam was down it, sir? looking,
A Not to the direction I no. was right looking you Q The direction were side? yes.” right forward, road,
A To the side of negligent. apparent He also approach patrol speed to decrease failed degree any to He either failed of caution. with ignored plain officer view see or ignored roadway the warn- with the and also ing By he makes clear shout. statements his own watching ahead the road but was that looking failed to to the side and he partially illuminated at least patrol car. general frequently that: “As a court held
This has for a motorist a matter of law rule it is highway on a such a manner to an automobile drive stop a collision in time avoid a with that he cannot range object of his vision.” O’Conner 554, 168 N. W. 703. Kientz, 184 Neb. dependent upon present case are we
In
“range
“The driver
vehicle
vision rule.”
motor
proper
duty
keep
lookout and
watch where
has
driving
though
driving
on the
he is
side of
even
he is
highway
be. He
he has a lawful
where
keep
or in the direction of
ahead
travel
a lookout
must
may
expected
others
from which
the direction
or in
in front of him
approach
for a
and to
what is
know
reasonable
Willey
distance.”
Parriott,
179 Neb.
Here the concedes that he not was the road ahead of As he him. a result failed attempting danger, the officer to see the him to warn failed parked and crashed into it truck, with little any Certainly, if speed. diminution of com- one who pletely driving fails watch he much where is more matter than as a of law one who simply speed prevents stopping at drives his object range in time to avoid an within his of vision. joins Boslaugh, J., in this dissent.
Clinton, J., concurring. requires response. I believe the dissent of Newton, J., may Where reasonable minds differ as to whether may violating certain conduct characterized be the reasonable man standard and therefore be determined negligent, question presented. jury to be This is fairly such a case. The dissent does describe the contributory negligence evidence on the issue of nor possible jury the inferences en- would points titled to from it. Four draw need to be noted. (1) parked The dissent truck il- assumes was by headlights police luminated There car. jury was evidence from which could conclude other- plaintiff The testified wise. car im- was mediately just left before the to his collision. This police car a little to mean was would south police officers car truck. The testified the was lengths north of about two car truck.
(2) properly jury The have could concluded that give any warning did not officer effective waving presence which the have time to avoid the seen collision. could speed plaintiff’s variously car was estimated per One to miles hour. officer testified at 40 oncoming plaintiff’s car he ran south saw when south the truck 1 block and was toward passed him. He also testified impact to two the time of the two was within lengths therefore must a half car He the truck. ap- speed which at a run back toward scene proached per was at least hour. consequently 35 miles required doubt is to believe this and created the officer as what did. just the left of other officer stated he was impact apparently immediately before until to occur the collision about aware “split
just he be- second” the collision when before oncoming “glare” lights of the came aware steps away the truck. He took three from car. two or exchange be- conversation There an immediate follows: him and his officer. tween fellow — — my immediately co- heard I heard I I “Well, officer ask — Taylor the unit. needed Robert ask if we the unit. There him I I asked if we needed hollered, *10 exchange to know conversation. He wanted of was immediately right to the I if and so went I was all going I car and to the McClellen cruiser ever without Taylor’s emergency Officer took the unit. I called to the car.” then I needed a unit and went that we word approached plaintiff head- the testified: “As I headlights through the lights, of the after I had went my immediately the left, there, it car was I some- left, seen out the car, body standing I looked window I re- the last and that the car beside support testimony tend would member.” This only the officer not where that not conclusion police south car was was, but also said he at all. and illuminated the truck testimony of concluded could have gave warning signals officer given may very consideration have well It accurate. admittedly overlooked officer, who to the fact long the scene (although had been officers both inspection thorough enough rather to make a truck) expedient simple turning on the flasher police equipped with which the car was and which might expedient regarded possibly pro- standard as a might very enough been cedure, well alert given flashlight signals exactly to have as claimed. (3) description its truck, color, its load, lights, background, its lack effect of the ad- bright lights (even beam) mittedly police low plaintiff, brings clearly car on vision this exceptions case within clear the assured distance doctrine. ahead
(4) interprets plaintiff’s testimony The dissent compelling finding as matter of law he did plain sight. all and failed to what not look at quotes only portion testimony The dissent a small point. testimony including quoted on the The entire support a conclusion that if the would directly looked headlights they
at the were blinding bright enough to be and that for that reason gaze he focused forward to full extent light beam that his low is not reached. This a total probably practice to maintain a lookout. failure passing oncoming most drivers followed cars with bright especially lights. presented. jury question
A joins concurrence. J., Spencer, Nebraska, appellee, v. Little Art State Corporation, appellant. corporation, N. W. *11 February 23,
Filed 1973. No. 38542.